货物买卖合同纠纷是最为常见的合同争议之一。天津博专律师事务所王景占律师为您解读有关货物买卖纠纷的司法解释。以下是2020年民法典颁布后，相应修改调整的关于买卖合同方面的专门司法解释，为日常的货物销售或者采购的法律问题提供了明确指引。
最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释2020
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Crime of Contract Fraud under laws of China
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The circumstance in which the attorney fees may be borne by the counterparty as per China Laws.
Generally speaking, the party who hires the lawyer should pay for the attorney fees at his own cost as per China legal practice. However, there are indeed exceptional circumstances in which the party could claim for the attorney fees.
- The attorney fees that the creditor paid in the realising the right of revoking a contract. As per the supreme court’s interpretation of the Contract law of PRC, the creditor is entitled to revoke the act that the debitor did if such act endangered the credit right.
- There are provisions of attorney fees in the contract. If the parties expressed agreed in the contract that the attorney fees shall be borne by the other party in the lawsuit of contract disputes, the winning party may be entitled to recover the attorney fees.
- the plantiff could claim for the lawyer fees in the trademark infringement case. As per the supreme court’s interpretation of laws, the reasonable lawyer fees could be deemed as the plantiff’s necessary expense and may be supported by the law court.
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Bank Gurantee
In international project, what may be caused if the wording for a bank guarantee is incorrect?
Introduction
In the international project, there may be much difference in aspects of geography, culture, language and legal environment. The Principals, Contractors, Sub-Contractors, Suppliers and other participants tend to obtain some surety from third party, usually the bank to secure the relevant party’s fulfillment. Bank guarantee is generally regarded as one of the most importance.
There are a variety of bank guarantees, among them are bid bond, performance bond, down payment bond, detention bond and customs bond. A little difference on how to word the documents possibly leads to a great change in its meaning and effectiveness. Hereunder I’ll take one case as an example to cast the light.”
Case Review：
A company named Power Gas Company (referred to as Party A), desirous of a professional engineering company to provide design service for its project, engaged with a well-known company named Great Designer Group (referred to as Party B). As per the agreement between them, Party B “shall provide a Performance Security in the form of “performance bond” in the amount of 5% of the Subcontract Price. And it shall be guaranteed and undertaken irrevocably and unconditionally in same currency of Subcontract Price.” When the draft form of guarantee is sent to Party B for check, Party B propose that a clause should be added that: “If the performance bond is presented to the bank for payment in case of any breach, the Contractor shall be informed at least 10 days ahead”, and Party A agreed to add this clause because they thought it’s reasonable.
It turned out that Party B failed to duly fulfill its obligations in compliance with the agreement, and Party A presented the performance bond to the bank asking for the guaranteed compensation. But the bank rejected Party A’s claims on the ground that an unconditional bank guarantee shouldn’t be furnished with any conditions and would become an conditional bank guarantee if any conditions were included.
Notes:
Construction guarantees typically take one of the two forms, namely an on-demand or call guarantee, which is unconditional, and a suretyship guarantee, which is conditional. The right of the holder and the obligations of the guarantor under these two guarantee differ:
In on-demand guarantees, the guarantor takes the first primary obligations, equivalent to an indemnity to the Employer.The guarantees operate independently of the degree of performance or non-performance of the principal contract. They are effectively the equivalent of a promissory note payable on demand. But there is any conditions taken into the guarantee, then the effect of the on-demand payment and dependence may change.
Suretyship guarantees are conditional on a particular event(or events), commonly on the satisfactory performance of the contractor. These guarantees are accessory to the principal agreement, and there can be no obligation where the principal obligation they refer to is not valid or effective.